Florida legislature recently passed CS / SB 1120, which updates and significantly expands the state’s existing telemarketing laws, the Florida Telemarketing Act, and the Florida Do Not Call Act. Many of the new provisions are similar to the TCPA, including the addition of a private plea for violating the Florida Do Not Call Act and prior express written consent for automated or recorded calls or texts. When the law comes into force, it will come into effect on July 1, 2021.
Under the existing Florida Do Not Call Act, callers are prohibited from making sales calls by telephone using “an automated system for selecting or dialing telephone numbers” unless (i) the call is in response to a consumer-initiated call; (ii ) The numbers are not listed or have been deleted from the Do Not Call list of the status. (iii) The calls relate to goods or services previously ordered or purchased. There are no exceptions to the definition of “telephone sales calls” in this Act. The Florida Telemarketing Act specifies, among other things, the requirements for licensing, calling time, identification and recording and contains a number of exceptions.
Changes to the Florida Do Not Call Act
Significantly, CS / SB 1120 adds a private plea in law to the Florida Do Not Call Act that allows harmed consumers to recover the greater actual damage or $ 500 or triple damages for willful or knowledge-based violations. In addition, the invoice now requires “prior express written consent” prior to making “telephone sales calls” over the phone, text or voicemail with an “automated number selection or dialing system” or a recorded message. In the invoice, the term “prior express written consent” is defined similarly to the TCPA, including requesting an electronic signature and informing consumers that consent is not required to purchase goods or services. The bill clears the existing call exceptions and creates a rebuttable presumption that every call to a Florida area code is a call to a Florida resident.
In comparison to the TCPA, the CS / SB 1120 also expands the scope of the legally required dialer technology. While the proposed amendments to the Florida Do Not Call Act do not separately define “autodialer”, relevant provisions regarding consent and call requirements refer to “automated system”[s] for selecting or dialing telephone numbers. “This reference is broader than the TCPA definition of“ automatic telephone dialing system ”(“ ATDS ”) recently established by the Supreme Court, which only includes devices that use a random or sequence number generator to store or produce a telephone number. It is therefore possible for a dialer to be subject to Florida law while technically not an ATDS under the TCPA.
Changes to the Florida Telemarketing Act
CS / SB 1120 also makes other notable changes to the Florida Telemarketing Act, including:
- Change the allowed call times from 8 a.m. to 9 p.m. to 8 a.m. to 8 p.m.
- Prohibition of more than three “commercial phone calls” within 24 hours on the same matter, regardless of the number on which the call was made; and
- Prohibiting the use of technology to intentionally hide the identity of the caller, a criminal offense of a second degree.
While the Florida Telemarketing Act has a number of exceptions, billing analysis shows that the above changes to the law apply to both non-exempt and exempt businesses.
The bill is currently registered, although it has not been presented to the governor. Since the Florida legislature ended on April 30th, the governor has 15 days from receipt to take action on the bill. If he signs the bill or takes no action, the bill becomes law and comes into effect on July 1, 2021. If they reject the bill, Florida lawmakers can override the veto with a two-thirds vote in any house. Both Houses voted unanimously to approve the bill, so they would likely override a veto and the bill would still come into effect on July 1, 2021.
In light of the above changes, risk mitigation strategies include establishing appropriate consent procedures. If you have any questions about how these changes could affect your business, please contact Alysa Hutnik or Lauren Myers. Subscribe to our blog for more telemarketing updates.
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